Adamawa election must hold — Oyetibo

August 10, 2014 : Tobi Aworinde

Mr. Tayo Oyetibo

An expert in constitutional law, Mr. Tayo Oyetibo, SAN, tells TOBI AWORINDE that the call by the Peoples Democratic Party for the extension of the tenure of the interim Adamawa State Government is unconstitutional, and thus, a by-election must be held

The constitution says if the governor of a state is impeached, a by-election should be held for a governor to be elected to complete the tenure of the ousted governor. But the Peoples Democratic Party in Adamawa State has expressed the need to retain the current interim government until the general elections next year. They argue it will be wasteful to hold two governorship elections within a short period of four months. What do you think?

You cannot go against the constitution. It is the law of the land. It must be respected. They have to conduct elections within the period stipulated in the constitution. Regardless of what anyone says, the constitution must be respected. We must remember that it is the law of the land; it has to be implemented.

But it is their belief that the by-election, if held as the constitution requires, may throw the state into instability.

That may be quite correct. But that is a political question; because if the general elections will hold February of next year, and you are conducting an election now, barely four months to the end of the year, which means the governor comes in and goes for another election within the period of five years. Well, that is what the constitution stipulates; so be it.

Would you say the PDP’s position could be a move to enable the party to maintain control of the state?

That is a political question. You need to be on the ground to know who is stronger. In almost all of the states now, those two parties are contending for power. One cannot answer that question without reference to what is on the ground in a state. And it would be difficult to make an assessment without having an interaction with the local people there, as to who has the upper hand and who is afraid of the other. But the question is what the constitution says and what has to be done. If the constitution must apply, it has to be enforced as it is.

The PDP has also said the state is in debt of N12bn and that the state government will incur additional debts if it organises the required by-election.

It is the INEC that conducts elections; it is not the state. That is suggestive of the fact that they will use state funds to conduct governorship elections and that is also illegal. So, that is not a legal consideration. Elections are conducted by the electoral body.

Are you saying the financial crisis in the state should not matter?

That has nothing to do with the conduct of elections. It is the INEC that is responsible for conducting elections, not the state government. You don’t use state funds to conduct governorship elections.

But then, the PDP said it has never happened before that a by-election is held few months to the next election.

That then means that it is because it has never happened before that a governor was removed close to the general election. Circumstances dictate events. In view of this, if a governor was removed a few months before general elections, it means that the circumstances which may follow may also be different from a normal situation. That is exactly what is happening. You cannot eat your cake and have it.

Is the argument that because of insecurity in the state the interim government should remain till the general elections are held tenable?

The question as to whether they should wait does not come within the constitution. But, if you’re looking at political or security considerations, it is entirely at the instance of the government. But what the law says is, ‘Conduct an election,’ unless it becomes impracticable or impossible to do so, and then you’re now inviting a state of emergency. Of course, you can find a solution within the framework of the law, because the law has always contemplated a situation in which there’s no governor in place. And what applies is that the constitution takes over, if there’s no governor or deputy governor. But you have to look for a solution within the constitutional framework. It must not be outside the constitution. All solutions to problems must be found within the framework of the constitution.

What are some of the solutions that can be considered within the provisions of the constitution?

The question of whether they should hold an election is not a constitutional question; it is a political question. The constitution requires that you hold an election. But if you bring an argument like it is impracticable to hold an election, you have to justify why it is impracticable, and the circumstances that make it impracticable —those are the issues that will be thrown up. But the legal position is that an election has to be held.

In the state, the PDP stakeholders said they were opposed to the springing up of delegates, whom they claimed were aspiring for the governorship position. Would you say this is legal?

The electoral commission has to declare the date of election; then you can begin to contest. Has the INEC declared the date of election? That is the question. it is the INEC that will declare the date for the election and then you can compete. The law does not vest the power to conduct elections in the contestants or the electorate. INEC is responsible for conducting elections. As it is, the national electoral body has to set the timetable; it has to set the rules. Then, the parties can begin to embark on campaign activities.

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An interesting development. If the political and security situations of the state were safe enough for impeachment, then it should be safe for a constitutionally required by election. Ironical the PDP forgot the liquidity problem of the sate when lawmakers were paid backlog of constituency allowance in the form of emolument. Clowns!!

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